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August 24, 2010
Property Rights, Eminent Domain, and the “Ground Zero Mosque”
The Volokh Conspiracy
by Ilya Somin
A few conservative commentators have advocated using the power of eminent domain to take the land on which the “Ground Zero mosque” is scheduled to be built (see here and here). The idea seems to have originated with New York Republican gubernatorial candidate Carl Paladino.
Legally, such a taking wouldn’t be as simple as Paladino seems to think. If New York state government tries to condemn the land in question, it will have to either admit that the true purpose is to prevent the construction of a Muslim facility, or concoct some other rationale to hide its motives. If the government is honest about its purposes, the proposed taking would almost certainly violate the owners’ First Amendment rights to freedom of speech and religion, for reasons senior Conspirator Eugene Volokh outlines here.
If, on the other hand, the government tries to put together an alternative justification for the condemnation, it runs into a different problem. Even under the otherwise highly permissive Kelo decision, the Supreme Court has said that “pretextual” takings (condemnations where the officially stated purpose is just a pretext for some other agenda) are forbidden. What exactly counts as a “pretextual” taking after Kelo is a matter of great dispute, one that has divided lower courts (see this excellent article by Daniel Kelly for the details). Nonetheless, there is a good chance that a transparent effort to cloak an effort to suppress unpopular speech or religious observances in some construction project would be viewed with suspicion by courts.
...As New York Mayor Michael Bloomberg puts it, “The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right.”
There is some irony in the fact that New York City Mayor Michael Bloomberg has eloquently defended the property rights of the “Ground Zero Mosque” owners even though he recently presided over gross abuses of property rights in the Atlantic Yards and Columbia University cases, among others. He strongly supported both of these extraordinarily dubious takings. Still, Bloomberg’s hypocrisy doesn’t make him any less right about the Ground Zero controversy.
Posted by eric at August 24, 2010 10:38 AM